People v. Brust

Decision Date29 January 1957
Docket NumberCr. 5780
CourtCalifornia Supreme Court
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar Hugo BRUST, Defendant and Appellant.

Eugene v. McPherson, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant has been found guilty of the first degree murders of his estranged wife and his step-son. The jury been instructed that 'if you should fix the penalty as death, you will not specify the death penalty in the verdict, and you will say nothing about punishment in the verdict'; so instructed, they returned verdicts silent as to penalty. Defendant was also convicted of assault upon his step-daughter with a deadly weapon with intent to commit murder. Jury trial on his plea of not guilty by reason of insanity was waived and the court found that defendant was sane at the time of the commission of the offenses. Defendant's motion for new trial was denied. This appeal from the judgment imposing the death sentence for each murder is taken by virtue of section 1239 (par. (b)) of the Penal Code.

Defendant's contentions relate only to the trial of the issues raised by his plea of not guilty. He argues that the evidence before the jury was insufficient to show that the murders were willful, deliberate, and premeditated (the only theory upon which they could have been found to be of the first degree). Defendant also complains of the trial judge's rejection of evidence of declarations by defendant's wife; this evidence, defendant claims, should have been admitted on the issue of the wife's provocation of defendant. We have concluded that defendant's contentions are without substantial merit. We have further concluded that the use of the so-called 'silent verdict,' in the circumstances of this case which are hereinafter delineated, is not shown to have misled the jury as to the unlimited scope of their discretion in choice of penalty for the murders of affected adversely to defendant their sense of responsibility for such choice of penalty.

At about 4 a. m. on October 30, 1954, defendant fatally shot his wife, Mildred Brust, and his step-son, Curtis Johnson, aged 16, and shot and wounded his stepdaughter, Kay Marie Johnson, aged 14. The shootings were the culmination of long-continued domestic difficulties. Defendant and Mildred were married in 1947. Curtis and Kay Marie, the children of a previous marriage of Mrs. Brust, lived with the Brusts. Defendant and Mrs. Brust had one child, Bobby, who was five years old at the time of the killings. Mr. and Mrs. Brust argued frequently about the step-children's lack of respect for defendant, defendant's authority in the home, and finances. On July 12, 1954, Mrs. Brust began an action for divorce and defendant moved from the family home. According to defendant he was 'illegally evicted'; in fact the complaint was accompanied by a request for an order that defendant be restrained from occupying the community home. Mr. and Mrs. Brust entered into a property settlement agreement which defendant performed, but Mrs. Brust repeatedly asked defendant for additional money. An interlocutory decree was entered on October 1, 1954. Mrs. Brust was awarded custody of Bobby with rights of visitation to defendant.

Defendant was employed by the federal government as a letter carrier. After the divorce proceeding was instituted, and at a time at least two weeks before the commission of the offenses of which defendant stands convicted, he surreptitiously took from the post office a key to the portion of the office where guns and ammunition were kept and had a locksmith make a duplicate of the key; he did this so that he would be able to obtain a gun. (Cf. People v. Green (1932), 217 Cal. 176, 179, 17 P.2d 730.)

At about 10 p. m. on October 29, 1954, defendant, at Mrs. Brust's request, telephoned her. She asked defendant to care for Bobby the next day, Saturday; defendant refused; and they argued. Defendant then went to the Brust house (defendant testified that Mrs. Brust asked him to come; Kay Marie testified that she did not). Defendant and Mrs. Brust quarreled, first about defendant taking Bobby, then about other matters. Mrs. Brust said, 'I am going to make trouble for you' with defendant's employer and the sheriff, and became very angry, 'going into a tantrum.' Defendant seized her arms and shook her and they fell to the floor. Kay Marie came toward them and defendant slapped her. Defendant said, 'I want to get out of here,' and Mrs. Brust said, 'Call the police. * * * I have got him where I want him.' Defendant attempted unsuccessfully to pull the telephone from the wall and left.

Defendant drove about 'in a turmoil' and thought of committing suicide. He went for a time to the Elks Club. He drove to the post office, used his duplicate, key, and took a revolver loaded with six cartridges. He returned to his room for a time.

After further driving about, defendant went to the Brust home at about 4 a. m. He broke open the front door, on which there was a chain lock. Mrs. Brust came from her bedroom and defendant shot her; the wound severed an artery. Kay Marie was screaming and running about her room; defendant fired two shots into the room and wounded her in the arm and shoulder. He went into Curtis' room, where the boy was attempting to shield himself beneath the covers, and shot him fatally in the back of the head. Meanwhile, Kay Marie had gone to the telephone and tole the operator to send the police.

After defendant shot Curtis he telephoned his adult daughter and told her that he had 'wiped out the family' and was going to kill himself and that he wanted her to come and get Bobby.

Deputy sheriffs arrived at the Brust residence at 4:50 a. m. Kay Marie met them at the door. When they entered the living room where defendant was, defendant put the revolver to his head and pulled the trigger repeatedly but the gun did not fire. A deputy seized defendant's arm and defendant, at the deputy's command dropped the gun.

The revolver contained four empty cartridges and two loaded cartridges with indentations on the primer caps which indicated that they had misfired.

Defendant, who appeared 'very calm,' answered the questions of the deputies. He said, among other things, 'I shot my wife first, and then my stepdaughter twice, and then my stepson. I wish you guys hadn't stopped me. I wanted to save the State the money. * * * I planned this for two months. * * * I got the gun from the post office * * * I had a key made to get in with. It was part of the plan.' Asked, 'Aren't you sorry you have done this?' defendant replied, 'No; I am glad. They have ruined my life, and it is too late to start over again. I am getting too old.'

In subsequent voluntary statements made by defendant to officials on October 30 and November 1, defendant described his domestic difficulties and the shootings. He said, among other things, that he had the duplicate post office key made 'For this definite reason. * * * What I have done' and that he took the gun 'For the exact purpose that I used it for to kill my wife and her two children and also myself'; that 'I had planned somewhat to destroy the family, except my son, including myself,' from the time defendant was 'evicted from the home' on July 12; and that if his victims were alive he would do the same thing 'Probably sooner.'

As the foregoing summary of the evidence shows, there is legally adequate proof of willful, deliberate, and premeditated murder. Defendant's argument that the evidence establishes not more than second degree murder 1 is based on a view of the evidence favorable to defendant rather than to the state. He urges that there was provocation 'adequate to negative or raise a reasonable doubt as to the idea of premeditation or deliberation, leaving * * * (each) homicide as murder of the second degree; i. e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation' (People v. Thomas (1945), supra, 25 Cal.2d 880, 903, 156 P.2d 7). Defendant's argument is particularly directed to the killing of Mrs. Brust, but he also refers to provocatory conduct of the step-children during the time he lived with them (their disrespect for defendant, making faces at him, calling him a 'bald-headed old goat,' demanding toys which he could not afford). The jury (who were fairly instructed as to the differences between the degrees of murder) could have accepted, but were not compelled to favor, the view that conduct of the victims was so grossly provcatory as to negative or raise a reasonable doubt as to the formation of a truly deliberate intent to kill; the jury's determination in this respect is controlling on appeal.

Defendant argues that because he had the key to the post office and could have obtained the gun prior to his going to the Brust home on the night of October 29, but did not up to that time avail himself of his opportunities to kill his wife and step-children, it is apparent that he had abandoned any intent to kill which he may have had previously; that after he went to the Brust home on October 29 at about 10:15 p. m. he could not have formed a deliberate intent to kill because the circumstances of his quarrel with Mrs. Brust, 'coupled with the indignities heaped upon him by his wife and step-children,' precluded subsequent dispassionate deliberation. Defendant particularly relies upon his own testimony that during his quarrel with Mrs. Brust 'She asked me for about $50.00. She said she could show me a good time'; that thereafter when they fell to the floor defendant dislocated his shoulder; and that during the approximately five hours after he left the Brust home on the night of October 29 and before he returned on the morning of October 30 he was planning suicide, not murder, but wished to see Bobby he...

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